Pages

Sunday, 12 June 2016

Whether trial will be vitiated if there is error in recording statement of accused U/S 313 of CRPC?

The gist of the above authorities is that everyerror or omission in compliance with the provisions of Section313 does not necessarily vitiate the trial. Such errors fallwithin the category of curable irregularities and question,whether trial is vitiated in each case, depends upon thedegree of error and whether prejudice has been or is likely tohave been caused to the accused. The ultimate test indetermining whether or not the accused has been fairlyexamined under this Section is to see whether, having regardto the questions put to him, he did not get an opportunity tosay what he wanted to say in respect of the prosecution caseagainst him. Where the non compliance with Section 313holds the trial to be vitiated, ordinarily the proper course is toorder a retrial from the stage at which the provisions of thissection were not complied with.21. We have meticulously examined the statement atExhibits 127 to 133. We could notice that 66 identicalquestions were put to each of the accused by the learnedAdditional Sessions Judge though entirely differentincriminating circumstances against each of them werebrought on record.It is pertinent to note that role played by accusedNos. 5,6 and 7 even according to prosecution was limited, asaccused Nos. 5 and 6 were guarding at the gate of thebuilding and accused No.7 passed on the information toaccused No.5, who, executed the plan. Accused No.7 was noteven present on the spot. Therefore, there was no meaningin putting all 66 questions to each of the accused. Asquestions were not put specifically, distinctly and separately,in our view, it amounts to serious irregularity vitiating thewhole trial, as it is shown that serious prejudice has beencaused to the accused.22. It is significant to note that since 2007, accusedwere facing the trial. Some of the accused remained in jailthroughout. The statements under Section 313 of the Code

were recorded just by cut-copy-paste. Most of the questionsput to each of the accused were irrelevant and misleading.The accused have demonstrated from the questions put tothem that serious prejudice has occasioned to them asstatements were recorded in the total disregard of theprovisions of Section 313 of the Cr.P.C. In this premise we arenot inclined to order retrial from the stage at whichprovisions of Section 313 of the Cr.P.C. were not compliedwith.23. In the result, appeals succeed. Accordingly, wepass the following order :-[a] The impugned judgment and order ofconviction and sentence in Sessions Case No. 642 of2007, passed by the learned Additional Sessions Judge,Greater Bombay, is hereby quashed and set aside ;IN THE HIGH COURT OF JUDICATURE AT BOMBAYCRIMINAL APPELLATE JURISDICTIONCRIMINAL APPEAL NO.415 OF 2010Swapnali @ Sapana Sharad ]Mahadik, ]

PRONOUNCED ON :- APRIL 22, 2015Citation: 2016 ALLMR(CRI)18241. These Appeals arise out of the Judgment andOrder dated 20/04/2010 passed by the learned AdditionalSessions Judge, Greater Mumbai, in Sessions Case No.642 of2007. By the said Judgment and Order, the trial Courtconvicted the Appellants/original accused nos.1 to 7 underSection 396 read with 34 of the Indian Penal Code andsentenced each of them to life imprisonment and fine ofRs.10,000/- (Rupees Ten Thousand Only); in default R.I. fortwo years.2. For the sake of convenience, we shall refer theRespondents as accused as they were referred before thetrial Court.3. The prosecution case briefly stated is as under :(i) That Mahendra Mehta, then aged about 30 years,was residing with his parents, wife Surabhi and a year old sonAmit in Flat No.309, Ravi Kiran Building, Carter Road No.3,Borivali (E), Mumbai. He was one of the partners in RiddhiJewellers situated at 285/305, Krishna Niwas, Office No.22/A,

Zaveri Bazar. PW 3 Rakesh Jain, his brother Manojkumar Jainand Vimal Mehta, brother of Mahendra Mehta, were the otherpartners of Riddhi Jewellers. PW 1 Mukesh Mehta, brother ofMahendra Mehta, was residing intervening 6-7 buildings fromRavi Kiran building, Borivali (E), Mumbai where MahendraMehta was residing with his family and parents.(ii) On 21/03/2007 morning, Mahendra Mehta was totravel to Gujarat. At about 4.30 a.m., PW 3 Rakesh Jainreturned to Bombay from Baroda. He went to the house ofMahendra Mehta in Ravi Kiran building. PW 3 Rakeshdelivered two samples of gold to Mahendra. Those sampleswere to be taken to Gujarat by Mahendra. That time, Rakeshalso handed over a mobile phone to Mahendra which wasbeing used by them in Gujarat. At 5.30 a.m., PW 3 Rakeshwent to Ganesh temple which was situated in the compoundof the same building.(iii) At around 6.00 a.m., Mahendra left the house andwalked down to catch train for Surat which was scheduled at

6.30 a.m. On the way, at some distance from his house infront of Jain Milk Dairy, four persons came on twomotorcycles and snatched the bag which was being carriedby Mahendra. Mahendra resisted the same, so those personsassaulted Mahendra by means of choppers over the headand wrist. That time, one male and one female were loiteringat the gate of Ravi Kiran building. After assault, assailantsran away on the motorcycles. Mahendra was severelyinjured and lying in a pool of blood. PW 3 Mukesh, elderbrother of Mahendra, was informed about the incident. Herushed to the spot. Devichand, father of Mahendra, alsocame to know and he too came to the spot. They shiftedMahendra to Bhagwati Hospital. Medical Officer at BhagwatiHospital declared Mahendra dead at around 7.45 a.m. Matterwas reported to Kasturba Marg Police Station.(iv) On 20/03/2007, PSI Chandrakant Mandavkar wason duty from 8.00 p.m. to 8.00 a.m. of 21/03/2007. Hereceived a telephonic message at around 7.05 a.m. on21/03/2007 that Mahendra was admitted to hospital as MLC

case. He communicated information to PI Dalvi andproceeded to hospital. Mahendra was admitted in ICU. Hewas not in a condition to give statement. On the death ofMahendra at 7.45 a.m., PSI Mandavkar recorded report ofMukesh. He returned to police station and registeredC.R.No.55 of 2007 under Sections 393, 397 and 302 of IPC.It appears that ADR entry no.22/2007 was alsoregistered on the basis of report lodged by Mukesh.Investigation was set into motion. During investigation, itwas revealed that accused no.7 Vishal Jain was serving inSejal Jewellers. He was knowing Mahendra Mehta. On19/03/2007, he met Mahendra in Zaveri Bazar and asked himwhy he had not been to Gujarat on 14/03/2007. On that,Mahendra informed accused no.7 Vishal that he would begoing to Gujarat on 21/03/2007. This information was passedon by accused no.7 Vishal to accused no.5 Rakesh who, withthe help of accused nos.1 to 4 and 6, executed the plan torob Mahendra. It was also revealed that on 21/03/2007 whenMahendra was on the way, accused nos.1 to 4 snatchedaway the bag which was being carried by Mahendra and

when Mahendra resisted, they assaulted him and caused hisdeath. That time, accused nos. 5 and 6 were guardingaccused nos.1 to 4. Then accused were arrested. Oncompletion of investigation, charge-sheet came to be filed.In due course, case was committed to the Court of Sessions.4. Charge came to be framed against the Appellantsunder Sections 396 and 398 of the IPC vide Exh.23. TheAppellants/accused pleaded not guilty to the charge andclaimed to be tried. Their defence was of total denial andfalse implication. On going through the evidence of 26witnesses examined in the case, the learned AdditionalSessions Judge convicted and sentenced the Appellants asstated in para 1 above. Hence these Appeals.5. We have heard the learned Advocates for theAppellants and the learned APP for State. After giving ouranxious consideration to the facts and circumstances of thecase, arguments advanced by the learned Advocates for theparties, the Judgment delivered by the learned Additional

Sessions Judge and the evidence on record, for the reasonsstated below, we are of the opinion that on facts prosecutionsucceeded but for want of proper compliance of Section 313of the Code of Criminal Procedure, trial vitiates and judgmentand order of conviction and sentence needs to be quashedand set aside.6. The fact of homicidal death is seriously in dispute.As such, exclusive burden lies on the prosecution to not onlyoverrule the possibility of natural, accidental or suicidal deathbut also to prove homicidal death beyond reasonable doubtby reliable and convincing evidence.7. To establish the factum of homicidal death,prosecution has relied upon -(i) Inquest panchanama,(ii) Medical evidence and(iii) Circumstantial evidence.8. (i) Inquest panchanama -Accused have not disputed genuineness of inquest

panchanama (Exh.52). It was drawn on 21/03/2007 between8.40 to 9.30 hours at Bhagwati Hospital dead house, Borivali(West). It can be seen from the panchanama that severalinjuries were noticed on the head, forehead, right hand, rightwrist and right arm. These injuries clearly indicate that thedeath in question was unnatural.9. (ii) Medical evidence -After inquest panchanama was drawn, dead bodywas sent for post-mortem examination. PW 13 Dr.RambhauSanap was the Medical Officer at Borivali PM Centre from2006 to January 2009.On 21/03/2007, Dr.Sanap received the dead bodyof Mahendra Devichand Mehta through Kasturba Marg PoliceStation for post-mortem. On the same day he conductedpost-mortem between 1.30 p.m. and 2.30 p.m. He noticedthe following external injuries on the dead body -i) Incised wounds over left hand, index finger 1stphalgnx posteriorly, size 4cm X 2 cm X bone

According to PW 13 Dr.Sanap, all the injuries wereante-mortem and caused by sharp and hard cutting objectlike chopper, sword, etc. The probable cause of death opinedby PW 13 Dr.Sanap was haemorrhage and shock due tomultiple injuries. PW 13 Dr.Sanap opined that it was anunnatural death. Post-mortem report was proved at Exh.59A.The Cause of Death Certificate was proved at Exh.83.Dr.Sanap stated that such injuries could be possible byassault with weapon like chopper and spear (Arts.1 and 2).In this connection, it was vehemently contendedby Mr. Chitnis, learned Senior Advocate for Appellants, thatdeceased met with an accidental death. Referring to thenature of injuries stated by PW 13 Dr.Sanap, it was submittedthat such injuries are possible only in motor vehicularaccident. Mr. Chitnis pointed that ADR entry was deliberatelysuppressed as the death was due to accident. He submittedthat had ADR entry been produced, the truth would havecome to the light.In view of the submissions advanced on behalf ofthe Appellants, relevant ADR entry No.22/2007 was called by

us and verified. The learned APP has produced its true copyon record which shows the history of homicidal death and notan accidental death, as submitted by the learned SeniorAdvocate for Appellants.On ADR, evidence of PW 19 PSI ChandrakantMandavkar is important. On 20/03/2007, PW 19 PSIMandavkar was attached to Kasturba Marg Police Station asDiary Officer from 8.00 p.m. to 8.00 a.m. of 21/03/2007. On21/03/2007, he received a telephonic message at around7.05 a.m. that Mahendra was admitted to the hospital fortreatment and it was a MLC case. He communicated theinformation to PW 22 PI Dalvi and proceeded to the hospital.He found Mahendra in ICU undergoing treatment. He statedthat Mahendra was not in a condition to make statement andexpired at 7.45 a.m. His brother PW 1 Mukesh was in thehospital. PSI Mandavkar inquired from Mukesh. On inquiry,he recorded the report (Exh.47) as per the say of Mukesh. Itappears that this report was registered as ADR entryNo.22/2007. In view of the evidence of PW 19 PSI Mandavkarand true copy of ADR entry No.22/2007 which came to be

verified from the original register, we do not find merit in thecontention raised by the learned Senior Advocate for theAppellants that the death in question was an accidentaldeath.Further it is significant to note that before the trialCourt, factum of homicidal death was not seriously indispute. The defence set up in cross-examination of PW-13Dr.Sanap was that injuries which were found during postmortemcould be caused by fall from any height on hard andblunt object. It indicates that there is no consistency in thedefence raised by the accused.On the other hand, we find overwhelmingevidence in the form of inquest panchanama, post-mortemreport supported by testimony of PW 13 Dr.Sanap whichexclusively tilts in favour of homicidal death overruling thecomplete possibility of natural, accidental or suicidal death.We, therefore, do not find any reason to take a view differentthen taken by the trial Court on the mode and cause of deathof Mahendra Mehta.

Raghunath Dalvi, PW23 PI Sunil Darekar and PW26 PIRamakant Pimple. These circumstances too indicate that thedeath in question was a homicidal death.To prove the authorship of the accused and toattribute the specific role to each of them in commission ofact also prosecution relied upon the aforesaid circumstances.It would be essential here to appreciate the same and findout whether these circumstances are legally proved andsufficient to bring home the guilt of the accused beyondreasonable doubt or not.11. (A) Ocular evidence. (B) Test identification parade.(i) PW 3 Rakesh Jain, PW 4 Mahesh Vyas and PW 6Mitesh Shah are the eye witnesses to the incident. PW 3Rakesh was one of the partners of Riddhi Jewellers.According to him on 21/03/2007 at around 4.30 a.m., hereturned to Bombay from Baroda and straight way went tothe house of Mahendra Mehta as Mahendra was to go toGujarat at around 6.30 a.m. on the same day. Rakesh

handed over two samples of gold to Mahendra and a cellphone which was being used for transaction in Gujarat. Afterhanding over gold samples, Rakesh left the house ofMahendra at around 5.30 a.m. and went to Ganesh templesituated in the compound of Ravi Kiran building. On his wayto temple, PW 3 Rakesh saw a lady and a man at the gate ofthe building. He proceeded ahead. He then saw twomotorbikes near Saibaba temple. Two persons were sittingon each motor bike. Thereafter PW 3 Rakesh reached hisresidence.At 6.30 a.m., Rakesh received phone call fromVimal Mehta informing him that some persons attempted tosnatch away the bag and assaulted Mahendra. He was alsoinformed that Mahendra was being carried to BhagwatiHospital by PW 1 Mukesh and his father Devichand. Onreceiving information, PW 3 Rakesh went to BhagwatiHospital. Medical Officer declared Mahendra as dead. Aftertwo days, PW 3 Rakesh had been to Dahisar Police Stationand informed police that he saw a lady and a man at the gateof Ravi Kiran building and also two persons each on two

motor bikes. Accordingly, his statement was recorded at thepolice station on 23/03/2007.(ii) On 08/05/2007, PW 3 Rakesh was called at Thaneprison for identification parade. SEO Ismail Khan conductedthe identification parade. During identification parade, PW 3Rakesh identified accused no.1 James and accused no.5Rakesh Bachchawat. PW 3 Rakesh misidentified accusedno.4 Shabbir who was not in the TIP.(iii) It is further stated by PW 3 Rakesh that on thesame day i.e. on 08/05/2007, he was taken to Byculla prison.During TIP conducted in Byculla prison, he identified accusedno.6 Swapnali as the same lady to whom he saw at the gateof Ravi Kiran building. Thereafter on 05/06/2007, TIP washeld at Arthur Road jail. In that TIP, PW 3 Rakesh identifiedaccused no.7 Vishal as the person sitting on motorbike.(iv) On 25/06/2007, TIP was held in Arthur Road prisonin respect to accused no.4 Shabbir. PW 3 Rakesh could not

identify accused no.4 Shabbir in TIP and mis-identifiedaccused no.3 Raju @ Dheknya during the parade.(v) From the entire evidence of PW 3 Rakesh, it isapparent that he had seen accused nos.5 and 6 at the gateof Ravi Kiran building and accused no.1 sitting on themotorbike.(vi) The next eye witness examined by theprosecution is PW 4 Mahesh Vyas. He used to go to Jain MilkDairy early in the morning for bringing milk. He stated thaton 21/03/2007 at about 6.00 a.m., he was returning homeafter purchasing milk. Near Maru General Store, he heardshouts. He looked to the direction of shouts and saw fourpersons snatching away a bag from the hands of one person.He stated that the person holding the bag was resisting.According to PW 4 Mahesh, out of four persons, twoassaulted the person with sharp edged weapons andremaining two caught hold the victim. He saw twomotorbikes parked to the left side of place of incident. He

stated that after assault, assailants ran away with theirmotorbikes in the Southern direction. PW 4 Maheshidentified accused no.2 Vishal in the TIP held on 08/05/2007and accused no.3 Raju @ Dheknya in the TIP conducted on05/06/2007. However in the Court, he identified accusedno.5 Rakesh Bachchawat holding the victim and accused no.2Vishal assaulting the victim. So far as accused no.3 Raju @Dheknya is concerned, PW 4 Mahesh identified him in the TIPas well as in Court. However in the TIP conducted on25/06/2007, PW 4 Mahesh identified accused no.4 Shabbir,he could not name the accused in Court. In respect toaccused no.2 Vishal and accused no.3 Raju @ Dheknya, hisevidence is consistent.(vii) Another eye witness is PW6 Mitesh Shah, who wasgoing to National Park for morning walk. When he reachedthe main road, he heard shouts “Bachao, Bachao”. PW 6Mitesh turned back and saw two persons holding the victimand two snatching bag from the victim. He stated thatvictim did not leave the bag. The assailants assaulted the

victim with sharp edged weapons. After assault, all four wentaway on two motorbikes parked near the place of incident.Thereafter PW 6 Mitesh went near the victim lying in pool ofblood. After two days, he informed Dahisar police about theincident.(viii) In the TIP held on 08/05/2007, PW 6 Miteshidentified accused no.1 James, on 25/06/2007 he identifiedaccused no.4 Shabbir during TIP.(ix) The evidence of PW 3 Rakesh, PW 4 Mahesh andPW 6 Mitesh is assailed by the defence on several grounds.Those are -(i) Vimal Mehta who informed PW 3 Rakesh, notexamined.(ii) PW 4 Mahesh Vyas introduced a new story thatinjured person went to Jain Milk Dairy and madephone call to his house.(iii) Delay in recording statements of these witnessesnot explained. In support, reliance is placed onLahu Kamlakar Patil and Another V/s. Stateof Maharashtra1(iv) Their evidence on identification of the accused isconfusing, concocted and forged.1 (2013) 6 Supreme Court Cases 417

(v) The testimonies of PW 3 Rakesh, PW 4 Maheshand PW 6 Mitesh are not consistent and cannot berelied.(x) On going through the entire evidence of PW 3Rakesh, PW 4 Mahesh and PW 6 Mitesh, it can be seen thattheir evidence in respect to manner of occurrence of incidentis cogent and consistent. Except a minor contradiction in theevidence of PW 6 Mitesh, nothing substantial could beelicited in the piercing cross-examination of the eyewitnesses. Thus, we do not find any reason to disbelievetheir evidence on incident.(xi) So far as TIP is concerned, it is a matter of recordthat the eye witnesses have mis-identified some of theaccused as discussed above. On the close scrutiny ofevidence of PW 3 Rakesh, it is clear that he identifiedaccused nos.1, 5 and 6 in the TIP conducted on 08/05/2007.PW 4 Mahesh identified accused no.3 Raju @ Dheknya on05/06/2007 during the TIP. PW 6 Mitesh identified accusedno.4 Shabbir in the TIP held on 25/06/2007.(xii) The star witness on TIP is PW 17 SEO Ismail Khan.

He stated that PI Darekar called him at Crime Branch office,Dahisar, and requested to hold identification parade in CrimeNo.11/2007 of Crime Branch. Accordingly letter was issuedto him. He conducted TIPs on 08/05/2007, 05/06/2007 and25/06/2007. It is stated by PW 17 SEO Khan that in the TIPheld on 08/05/2007, Sukhdeo Shinde and Nagesh Jangamwere the two panch witnesses. ASI Deshmane introducedPW 17 SEO Khan to Jailor. The identifying witnesses i.e. PW 3Rakesh Jain, PW 4 Mahesh Vyas and PW 6 Mitesh Shah weremade to sit in a separate room. This TIP was in respect toaccused no.1 John, accused no.2 Vishal and accused no.5Rakesh Bachchawat. PW 17 SEO Khan selected 18 dummies.Out of 18, he asked 12 dummies to stand in a line. He tookcare to see that place of identification parade was not visibleto outsiders and particularly to the identifying witnesses.Initially accused no.1 James and accused no.2Vishal were called. They were given idea of conductingidentification parade. Accused were given a choice to selecttheir own place, change the clothes if they desired and takethe position in the line as per their wish. Accused declined to

change the clothes. Accused no.1 James stood betweendummy nos.3 and 4 and accused no.2 Vishal stood betweendummy nos.7 and 8. Thereafter panch witness Sukhdeo wassent to bring identifying witness PW 3 Rakesh Jain. PW 3Rakesh identified accused James and Vishal by touching themwith finger. The proceedings were noted by PW 17 SEOKhan. Then PW 3 Rakesh was sent to different room.(xiii) Another panch was sent to call PW 6 Mitesh Shah.He was asked to identify the culprits. PW 6 Mitesh identifiedaccused James and Vishal by touching their bodies. Theproceedings were accordingly recorded by PW 17 SEO Khan.The same procedure was followed in respect to the thirdidentifying witness PW 4 Mahesh Vyas. He too identifiedaccused James and Vishal. Memorandum of TIP was drawn.It was proved at Exh.88.(xiv) In the process of identification, PW 17 SEO Khanselected six dummies. Accused no.5 Rakesh Bachchawatwas then called. He was identified by PW 3 Rakesh Jainduring TIP. Memorandum of identification was drawn by SEO

Khan. Then dummies, accused and panchanama of TIP werehanded over to the Investigating Officer.(xv) On the same day, PW 17 SEO Khan conductedidentification parade in Arthur Road prison. In the parade,PW 3 Rakesh Jain identified accused no.6 Swapnali as thelady standing at the gate of Ravi Kiran building. Its separatememorandum was drawn by PW 17 SEO Khan. It was provedat Exh.89.(xvi) At the time of second parade held on 05/06/2007,accused Raju @ Dheknya Thakre was subjected toidentification parade. Shaku Qureshi and Ramsagar were thepanch witnesses. PW 17 SEO Khan stated that 3 identifyingwitnesses Rakesh Jain, Mahesh Vyas and Mitesh Shah werecalled at Arthur Road prison. He selected six dummies.Accused no.3 Raju stood in between dummy nos.3 and 4 asper his wish. Then identifying witnesses were called one byone. They identified accused no.3 Raju in the identificationparade. Memorandum of identification parade (Exh.90) wasaccordingly drawn.

(xvii) On 25/06/2007, another identification parade wasconducted. Tukaram Lokhande and Aba Shirsath were thepanch witnesses. PW 17 SEO Khan took all necessaryprecautions. He selected six dummies. This TIP was inrespect of accused no.4 Shabbir @ Khadda. Following thesame procedure as followed in the earlier parades, thisidentification parade was held. Identifying witnesses PW 3Rakesh Jain, PW 4 Mahesh Vyas and PW 6 Mitesh Shahidentified accused no.4 Shabbir @ Khadda in the TIP.Memorandum of TIP was drawn by PW 17 SEO Khan atExh.91.(xviii) It is pertinent to note that identifying witnesseshave attributed specific role to each of the accused.Memorandum panchanamas are self speaking to that effect.Considering evidence of PW 17 SEO Khan, Memorandumpanchanamas Exhs.88 to 91 and the ocular version of PW 3Rakesh Jain, PW 4 Mahesh Vyas and PW 6 Mitesh Shah, it canbe seen that the evidence is natural, convincing and cogent.There is no reason to disbelieve the same. Some minorcontradictions and omissions were bound to be there as the

witnesses were examined in the year 2009 whereas incidenttook place in the year 2007. There was no animositybetween identifying witnesses, SEO who conducted TIPs onone hand and the accused on the other. In our view, theevidence of eye witnesses and PW 17 SEO Khan inspiresconfidence and clearly establishes the manner of incident ofassault on Mahendra and the role played by each of theaccused in occurrence of incident.13. (C) Oral dying declaration to PW 1 Mukesh -To prove oral dying declaration, prosecutionexamined PW-1 Mukesh Mehta. He is the real brother ofdeceased Mahendra.It is stated by Mukesh that on 21.3.2007,in the morning at around 6.30 a.m. when he was sleeping inthe house, his wife Mamta received a phone call of VeenaMehta, wife of his real brother Vimal Mehta asking her tosend Mukesh immediately as Mahendra met with anaccident. Therefore, his wife woke him up and informed themessage of Veena. Immediately, Mukesh rushed to thehouse of Mahendra. On the way,he saw Mahendra lying in

injured condition on the road near his house. At the sametime, his father arrived there. Mukesh inquired fromMahendra what had happened. On that, Mahendra told himthat four persons arrived on two motor bikes. They weresnatching his bag and he resisted the same. Those personsthen assaulted him. When Mukesh asked him about identityof those four persons Mahendra told that they were unknownto him. Thereafter, Mahendra fell semi-unconscious and hewas taken to Bhagwati Hospital in a rickshaw. He wasdeclared as dead by Medical Officer. Mukesh proved Exh. 47report lodged by him after Mahendra was declared dead.On going through the evidence of Mukesh, it isapparent that Mahendra did not name accused persons.From the evidence of Mukesh, at the most it can be said thatMahendra met with homicidal death. So far as authorship ofthe accused to cause death of Mahendra is concerned,evidence of Mukesh is not helpful to the prosecution asdeceased had not implicated the appellants/accused in thecommission of alleged act.14. (D) Discovery of incriminating articles -

On discovery under Section 27 of the Evidence Actthe learned Senior Counsel for accused Nos. 1,3 and 4 reliedupon Prabhoo V/s. State of Uttar Pradesh2 in which it hasbeen held that -“9. The main difficulty in the case isthat the evidence regarding the recoveryof blood stained axe and blood stainedshirt and dhoti is not very satisfactory andthe courts below were wrong in admittingcertain statements alleged to have beenmade by the appellant in connection withthat recovery. According to the recoverymemo the two witnesses who werepresent when the aforesaid articles wereproduced by the appellant were LalBahadur Singh and Wali Mohammad. LalBahadur Singh was examined asProsecution Witness 4. He did giveevidence about the production of bloodstained articles from his house by theappellant. The witness said that theappellant produced the articles from a tubon the eastern side of the house. Thewitness did not, however, say that theappellant made any statements relatingto the recovery. Wali Mohammad was notexamined at all. One other witness DodiBaksh Singh was examined as2 (1963) 2 SCR 881 : AIR 1963 SC 1113 : (1963) 2 Cri LJ 182

Prosecution Witness 3. This witness saidthat a little before the recovery the SubInspectorof Police took the appellant intocustody and interrogated him; then theappellant gave out that the axe withwhich the murder had been committedand his blood stained shirt and dhoti werein the house and the appellant wasprepared to produce them. Thesestatements to which Dobi Baksh (PW 3)deposed were not admissible in evidence.They were incriminating statements madeto a police officer and were hit bySections 25 and 26 of the Indian EvidenceAct. The statement that the axe was onewith which the murder had beencommitted was not a statement which ledto any discovery within the meaning ofSection 27 of the Evidence Act. Nor wasthe alleged statement of the appellantthat the blood stained shirt and dhotibelonged to him was a statement whichled to any discovery within meaning ofSection 27. Section 27 provides that whenany fact is deposed to and discovered inconsequence of information received froma person accused of any offence, in thecustody of a police officer, so much ofsuch information, whether it amounts to aconfession or not, as relates distinctly tothe fact thereby discovery may be

proved. In Pulukuri Kotayya v. KingEmperor the Privy Council considered thetrue interpretation of Section 27 andsaid :"It is fallacious to treat the 'fact discovered' within thesection as equivalent to the object produced; the factdiscovered embraces the place from which the object isproduced and the knowledge of the accused as to thisand the information given must relate distinctly to thisfact. Information as to past user or the past history, ofthe object produced is not related to its discovery in thesetting in which it is discovered. Information supplied bya person in custody that 'I will produce a knife concealedin the roof of my house' does not lead to the discovery ofa knife; knives were discovered many years ago. It leadsto the discovery of the fact that a knife is concealed inthe house of the informant to his knowledge, and if theknife is proved to have been used in the commission ofthe offence, the fact discovered is very relevant. But if tothe statement the words be added 'with which I stabbedA.', these words are inadmissible since they do not relateto the discovery of the knife in the house of theinformant." (p. 77)10. We are, therefore, of the opinion that the courtsbelow were wrong in admitting in evidence the allegedstatement of the appellant that the axe had been used tocommit murder or the statement that the blood stained shirtand dhoti were his.”In the present case according to prosecution,chopper used in commission of act was recovered at the

instance of accused No.3 – Raju @ Dheknya and accusedNo.4 – Shabbir @ Khadda. To establish discovery of chopperat the instance of these accused, prosecution relied uponevidence of PW 8, PW 18 and PW 23.On going through the evidence of PW-8 KishorNikam, it can be seen that he was called by Police OfficerDarekar to act as a Panch. Accused No.4 Shabbir was inpolice custody that time. It is stated by PW-8 Kishor thataccused Shabbir made a statement to discover chopper andpant, which was thrown by him near Naigaon. The statementof Shabbir was accordingly recorded. It is further stated by PW-8 Kishor that aftermemorandum was drawn, Shabbir led them to Naigaon. Hediscovered a pant and chopper which were lying between thetrees. Chopper was identified by Kishor at article 3 and pantat article 8. He proved memorandum and recoverypanchanama accordingly.Nothing substantial could be elicited in the crossexaminationof this witness which is fully supported by PW-23, Investigating Officer - Sunil Darekar. The evidence of PIDarekar shows that accused No.4 Shabbir was arrested on7.6.2007. On 12.6.2007, he voluntarily gave a memorandum

in the presence of Panch witnesses to discover chopper andpant. He stated that chopper and pant were recovered atthe instance of Shabbir near a field at Naigaon.Memorandum and Panchanama exhibits 69 and70 are duly proved by the Investigating Officer and PanchWitnesses. There is no reason to disbelieve theirtestimonies. Trial Court has properly appreciated theevidence on discovery and there is no reason for us tointerfere with the same.So far as accused No.3 Raju @ Dheknya isconcerned, evidence of PW-18 will have to be looked into.PW-18 Sanjay Jain was standing at Ravindra Hotel on23.05.2007. One Police Officer requested him to act asPanch. So he accompanied the Officer to Police Station.Accused Raju gave memorandum in his presence to discovera chopper and a pant. Accordingly, memorandum was drawnvide Exhibit 96. It is stated by PW-18 Sanjay that aftermemorandum, accused Raju discovered chopper and clothesin their presence. Panchama is proved by him at Exhibit 97.None of the accused persons except accused No.3 crossexaminedthis witness. Nothing otherwise could be broughtby accused No.3 in the cross-examination to discard the

testimony of Panch Witness Sanjay. His evidence is fullycorroborated by PW-23 PI Darekar. We are, therefore, notinclined to take a view different than one taken by the trialcourt in this regard.15. (E) Recovery of clothes at the instance ofaccused no.1 from the flat of accused no.6 -To prove this circumstance reliance is placed bythe prosecution on evidence of PW-11 Manoj Shah. On28.4.2007, he was called at Unit No XII of DCB, CID.Accordingly, he went there. He stated that one person incustody of police gave his name as Jambo. He made astatement to discover his Shirt, Banyan, Pant and a Mobile.As stated by Jambo, memorandum was drawn at Exhibit 77.According to PW-11 Manoj, after memorandum,Jambo led them in a jeep to a flat in Udisha Apartment, RoomNo. 501, owned by accused No.6 – Swapnali. A person byname Sharad Mahadik was present there. Jambo madediscovery of Jeans Pant, Banyan and a Mobile Phone of NokiaCompany. These articles were seized and SeizurePanchanama Exhibit 78 was drawn. Witness identified article9 – Jeans Pant, article 10 – Banyan and article 11 – Mobilehand set. He could not identify accused Jambo before the

Court. PW-23 – P.I. Darekar identified him in the dock. It ispertinent to note that accused No.1 Jambo was acquaintedwith accused No.6 Swapnali. No plausible explanation wasgiven by accused No.1 Jambo and accused No.6 Swapnali inrespect of recovery of clothes from the house of accusedNo.6 - Swapnali. This is the most clinching circumstanceagainst accused No.1 Jambo and accused No.6 Swapnali. Wefind no reason to disbelieve the same.16. (F) Recovery of motor bikes -To establish this circumstance, prosecutionadduced evidence of PW-14, PW-20 and PW-15, PW-22.PW-14 – Radheshyam Amrutlal Bind was running aMechanic Shop of repairing motor bikes. He stated thatmotor bike bearing No. MH-02/HA-1715 was sold by him toaccused No.2 Vishal Chauhan for Rs. 20,000/-. He identifiedaccused No. 2 – Vishal Chauhan in the dock. This motor bikewas recovered at the instance of accused No.2 VishalChauhan.In this connection, PW-20 ASI Ankush Chavanstated that on 24.4.2007, the abovesaid motor bike wasrecovered at the instance of accused Vishal Chauhan. He

proved memorandum Exhibit 101 and Seizure of motor bikeon the information given by accused No.2 Vishal Chauhanvide Exhibit 102.Another motor bike bearing No. MH-01/HA-802was sold by PW-15 Sultan Siddiqui, who runs a Shop “CityMotors”. According to PW-15 Sultan Siddiqui, he sold the saidmotor bike to James @ Jambo for Rs. 12,500/- on 12.1.2007.PW-15 deals in sales and purchases of old motor bikes. Heidentified accused No.1 Jambo in the dock. This motor bikewas recovered at the instance of accused by PW-22 P.I.Raghunath Dalvi. Memorandum Exhibit 108 given byaccused No.1 to discover the said motor bike and discoverypanchanama of the motor bike Exhibit 109 are proved by PW-22 - P.I. Raghunath Dalvi. Accused No.1 Jambo and accusedNo.2 Vishal Chauhan could not elicit anything adverse in thecross-examination of these witnesses. Thus, prosecutionsucceeded in establishing this circumstance against accusedNos. 1 and 2.According to prosecution, deceased MahendraMehta was known to accused No. 7 – Vishal Jain. On19.3.2007, PW-16 – Sandip Jain alongwith Mahendra Mehtahad been to Zaveri Bazar, Mumbai for purchasing gold chain.At around 4.00 p.m. when they were proceeding to Zaveri

Bazar, accused No.7 Vishal Jain met them near the shopwhere he was working. At that time, accused Vishal Jainasked Mahendra Mehta reason of not going to Gujarat on14.3.2007. Mahendra told him that he could not go on14.3.2007 and he would be going on 21.3.2007. It is allegedthat accused No.7 – Vishal Jain passed on this information toaccused No.5 Rakesh Bacchawat, who then, with the help ofother accused planned to rob Mahendra and accordingly, theplan was executed on 21.3.2007 when Mahendra wasproceeding towards railway-station to catch the train.So far as involvement of accused No.7 Vishal Jainis concerned, prosecution has relied upon the evidence of PW16 Sandip Jain, who fully supports the prosecution andconfessional statement of accused No.7 Vishal Jain recordedby PW 21 Metropolitan Magistrate Mr. G.M. Agrawal. Mr.Agrawal was attached to 23rd Esplanade Court at the relevanttime. He recorded statement of accused Vishal ChampalalJain under Section 164 of the Code of Criminal Procedure.The trial court has relied upon the confessional statement ofVishal Jain recorded by learned Magistrate Mr. Agrawal. It isat Exhibit 106. It is apparent from confessional statementExhibit 106 that the same is exculpatory. Accused Vishal Jaindoes not implicate him in the entire confession made before

PW-21 Mr. Agrawal.On this piece of evidence, learned counsel foraccused No.7 Mr. Salgaonkar, relied upon the decision of theHon'ble Apex Court in Harbans Singh Bhan Singh vs.State of Punjab3, in which is has been held thatcorroboration is necessary to the confessional statementbefore convicting an accused person on such a statement.In the case on hand, we have already observedthat confessional statement Exh. 106 recorded by thelearned Metropolitan Magistrate is of no use to theprosecution as it is exculpatory in nature and, so, we do notfind it necessary to dilate much on this aspect.If confessional statement is kept out ofconsideration, then only circumstance which remains againstaccused No.7 Vishal Jain is as stated by PW-16 Sandip Jainthat on 19.3.2007 accused Vishal Jain inquired fromMahendra Mehta and he told him that he would be going toGujarat on 21.3.2007. There is no evidence to show that hepassed on the information to accused No.5 RakeshBacchawat. In the absence of such link, we find thatevidence against accused No.7 is not sufficient to convicthim.3 AIR (SC) -1957-0-637

17. In view of the role attributed to Accused No.5Rakesh Bacchawat, learned counsel Mr. Rishikesh Mundargi,submitted that there is no material to attribute an overt actto accused Rakesh Bacchawat and in the absence of suchmaterial, his conviction needs to be set aside. On commonintention and common object, learned counsel Mr. Mundargireferred to the following decisions :(i) Rambilas Singh and Others V/s. State ofBihar4 in which it has been held -“It is true that in order to convict personsvicariously under Section 34 or Section149 IPC, it is not necessary to prove thateach and everyone of them had indulgedin overt acts. Even so, there must bematerial to show that the overt act or actsof one or more of the accused was orwere done in furtherance of the commonintention of all the accused or inprosecution of the common object of themembers of the unlawful assembly. In thiscase, such evidence is lacking and hencethe appellants cannot be held liable forthe individual act of A-16.”4 (1989) 3 Supreme Court Cases 605

(ii) Dayashankar V/s. State of Madhya Pradesh5In this case it was observed that -“In order to bring home the charge ofcommon intention, the prosecution has toestablish by evidence, whether direct orcircumstantial, that there was plan ormeeting of mind of all the accusedpersons to commit the offence for whichthey are charged with the aid of Section34, be it pre-arranged or on the spur ofmoment; but it must necessarily bebefore the commission of the crime. Thetrue contents of the Section are that iftwo or more persons intentionally do anact jointly, the position in law is just thesame as if each of them has done itindividually by himself. As observed inAshok Kumar v. State of Punjab6, theexistence of a common intention amongstthe participants in a crime is the essentialelement for application of this Section. Itis not necessary that the acts of theseveral persons charged with commissionof an offence jointly must be the same oridentically similar. The acts may bedifferent in character, but must have beenactuated by one and the same commonintention in order to attract the provision.9. The evidence of PWs 2 and 3 did not5 (2009) 11 Supreme Court Cases 4926 (1977) 1 SCC 746 : 1977 SCC (Cri) 177 : AIR 1977 SC 109

attribute any overt act to the appellant.The mere fact that he was in the companyof the accused who were armed wouldnot be sufficient to attract Section 34 IPC.It is undisputed that appellant was notarmed and he had no animosity with thedeceased. This position is also acceptedby the prosecution. Additionally, the standthat he pulled the leg of the deceased hasnot been established.”(iii) Sripathi and Others V/s. State of Karnataka7in which it was held -“9. 5. Section 34 has been enactedon the principle of joint liability in thecommission of a criminal act. The Sectionis only a rule of evidence and does notcreate a substantive offence. Thedistinctive feature of the Section is theelement of participation in action. Theliability of one person for an offencecommitted by another in the course ofcriminal act perpetrated by severalpersons arises under Section 34 if suchcriminal act is done in furtherance of acommon intention of the persons who joinin committing the crime. Direct proof ofcommon intention is seldom availableand, therefore, such intention can only beinferred form the circumstances7 (2009) 11 Supreme Court Cases 660

appearing from the proved facts of thecase and the proved circumstances. Inorder to bring home the charge ofcommon intention, the prosecution has toestablish by evidence, whether direct orcircumstantial, that there was plan ormeeting of mind of all the accusedpersons to commit the offence for whichthey are charged with the aid of Section34, be it pre-arranged or on the spur ofmoment; but it must necessarily bebefore the commission of the crime. Thetrue contents of the Section are that iftwo or more persons intentionally do anact jointly, the position in law is just thesame as if each of them has done itindividually by himself. As observed inAshok Kumar v. State of Punjab, theexistence of a common intention amongstthe participants in a crime is the essentialelement for application of this Section. Itis not necessary that the acts of theseveral persons charged with commissionof an offence jointly must be the same oridentically similar. The acts may bedifferent in character, but must have beenactuated by one and the same commonintention in order to attract theprovision.”

On constructive liability, Mr. Salgaonkar, learnedcounsel for accused No.7 relied upon Dharam Pal andOthers V/s. State of Haryana8 in which it was held -“It may be that when some persons startwith a pre-arranged plan to commit aminor offence, they may in the course oftheir committing the minor offence cometo an understanding to commit the majoroffence as well. Such an understandingmay appear from the conduct of thepersons sought to be made vicariouslyliable for the act of the principal culprit orfrom some other incriminatory evidencebut the conduct or other evidence mustbe such as not to leave any room fordoubt in that behalf. A criminal Courtfastening vicarious liability must satisfyitself as to the prior meeting of the mindsof the principal culprit and hiscompanions who are sought to beconstructively made liable in respect ofevery act committed by the former. Thereis no law to our knowledge which laysdown that a person accompanying theprincipal culprit shares his intention inrespect of every act which the lattermight eventually commit. The existenceor otherwise of the common intentiondepends upon the facts and8 AIR 1978 SUPREME COURT 1492

circumstances of each case. The intentionof the principal offender and hiscompanions to deal with any person whomight intervene to stop the quarrel mustbe apparent from the conduct of thepersons accompanying the principalculprit or some other clear and cogentincriminating piece of evidence. In theabsence of such material, the companionor companions cannot justifiably be heldguilty for every offence committed by theprincipal offender. As already stated,there is no evidence to justify theconclusion that Surta and Samme Singh,appellants shared the common intentionwith Dharam Pal to commit the murder ofSardara Singh or to make an attempt onthe life of Singh Ram and that the saidacts were committed by Dharam Pal infurtherance of the common intention ofall the appellants. The common intentiondenotes action in concert and necessarilypostulates a pre-arranged plan or priormeeting of minds and an element ofparticipation in action. As pointed outabove, the common intention to commitan offence graver than the one originallydesigned may develop during theexecution of the original plan e. g. duringthe progress of an attack on the personwho is intended to be beaten but the

evidence in that behalf should be clearand cogent for suspicion, however strong,cannot take place of the proof which isessential to bring home the offence to theaccused.”18. In respect of the role attributed to accused Nos.5,6 and 7, we have elaborately discussed the evidence ofprosecution witnesses in the foregoing paragraphs. It iscrystal clear from the evidence that at the relevant time,accused No.5 – Rakesh Bacchawat and accused No.6 –Swapnali were guarding on the gate of the building. So far asaccused No.7 Vishal Jain is concerned, it is not disputed thathe was not present at that time. The authorities referred bythe learned counsel for accused Nos. 5 and 7 reiterated thesettled propositions of law that absence of materialcompanion or companions cannot justifiably be held guilty forevery offence committed by the principal offender. Theprovisions of Sections 34 and 149 are squarely applicable inthe circumstances of the case in view of the evidence of theprosecution witnesses and, therefore, the authorities reliedupon as above, by the learned counsel for the accused No.5and 7 would not come to their rescue.19. In the light of the above, on facts, in fact,

conviction of accused Nos. 1 to 6 was required to bemaintained. But the crucial question before us is, whetherconviction recorded by the trial court would legally sustain.In this respect the learned Senior Counsel for the accuseddrew our attention to the statement of accused personsrecorded by the learned Additional Sessions Judge underSection 313 of the Code of Criminal Procedure at Exhibits 127to 133. Referring to various questions and particularlyquestions 22 and 62 it was submitted that questions thoughnot related were asked which caused grave prejudice tothem.On the applicability and scope of Section 313 ofthe Code of Criminal Procedure, learned Senior Counsel foraccused Nos. 1,3 and 4 vehemently relied upon the followingdecisions :-(i) Tara Singh V/s. State9 in which it has been heldthat -“32. I cannot stress too strongly theimportance of observing faithfully andfairly the provisions of section CriminalProcedure Code. It is not a propercompliance to read out a long string ofquestions and answers made in the9 1951 SCR 729 : AIR 1951 SC 441 : (1951) 52 Cri LJ 1491

Committal Court and ask whether thestatement is correct. A question of thatkind is misleading. It may mean eitherthat the questioner wants to knowwhether the recording is correct, orwhether the answers given are true, orwhether there is some mistake ormisunderstanding despite the accuraterecording. In the next place, it is notsufficient compliance to string together along series of facts and ask the accusedwhat he has to say about them. He mustbe questioned separately about eachmaterial circumstance which is intendedto be used against him. The whole objectof the section is to afford the accused afair and proper opportunity of explainingcircumstances which appear against him.The questioning must therefore be fairand must be couched in a form which anignorant or illiterate person will be able toappreciate and understand. Even when anaccused person is not illiterate, his mindis apt to be perturbed when he is facing acharge of murder. He is therefore in no fitposition to understand the significance ofa complex question. Fairness thereforerequires that each material circumstanceshould be put simply and separately in away that an illiterate mind, or one whichis perturbed or confused, can readily

appreciate and understand. I do notsuggest that every error or omission inthis behalf would necessarily vitiate a trialbecause I am of opinion that errors of thistype fall within the category of curableirregularities. Therefore, the question ineach case depends upon the degree ofthe error and upon whether pre-judice hasbeen occasioned or is likely to have beenoccasioned. In my opinion, the disregardof the provisions of Section 342 ofCriminal Procedure Code, is so gross inthis case that I feel there is gravelikelihood of prejudice.”(ii) Narain Singh V/s. State of Punjab10 in which ithas been held that -“5. Under Section 342 of the Code ofCriminal Procedure by the first subsection,insofar as it is material, the Courtmay at any stage of the enquiry or trialand after the witnesses for theprosecution have been examined andbefore the accused is called upon for hisdefence shall put questions to theaccused person for the purpose ofenabling him to explain any circumstanceappearing in the evidence against him.Examination under Section 342 isprimarily to be directed to those matters10 (1963) 3 SCR 678 : (1964) 1 Cri LJ 730

on which evidence has been led for theprosecution, to ascertain from theaccused his version or explanation, if any,of the incident which forms the subjectmatterof the charge and his defence. Bysub-section (3), the answers given by theaccused may "be taken intoconsideration" at the enquiry or the trial.If the accused person in his examinationunder Section 342 confesses to thecommission of the offence chargedagainst him the court may, relying uponthat confession, proceed to convict him,but if he does not confess and inexplaining circumstance appearing in theevidence against him sets up his ownversion and seeks to explain his conductpleading that he has committed nooffence, the statement of the accused canonly be taken into consideration in itsentirety. It is not open to the Court todissect the statement and to pick out apart of the statement which may beincriminative, and then to examinewhether the explanation furnished by theaccused for his conduct is supported bythe evidence on the record. If the accusedadmits to have done an act which wouldbut for the explanation furnished by himbe an offence, the admission cannot beused against him divorced from the

explanation.”(iii) Paramjeet Singh alias Pamma V/s. State ofUttarakhand.11 in which it has been held that -“A criminal trial is not a fairy tale whereinone is free to give flight to one'simagination and fantasy. Crime is anevent in real life and is the product of aninterplay between different humanemotions. In arriving at a conclusionabout the guilt of the accused chargedwith the commission of a crime, the courthas to judge the evidence by theyardstick of probabilities, its intrinsicworth and the animus of witnesses. Everycase, in the final analysis, would have todepend upon its own facts. The courtmust bear in mind that "human nature istoo willing, when faced with brutal crimes,to spin stories out of strong suspicions."Though an offence may be gruesome andrevolt the human conscience, an accusedcan be convicted only on legal evidenceand not on surmises and conjectures. Thelaw does not permit the court to punishthe accused on the basis of a moralconviction or suspicion alone. "Theburden of proof in a criminal trial nevershifts and it is always the burden of theprosecution to prove its case beyond11 (2010) 10 Supreme Court Cases 439

reasonable doubt on the basis ofacceptable evidence." In fact, it is asettled principle of criminal jurisprudencethat the more serious the offence, thestricter the degree of proof required,since a higher degree of assurance isrequired to convict the accused. The factthat the offence was committed in a verycruel and revolting manner may in itselfbe a reason for scrutinizing the evidencemore closely, lest the shocking nature ofthe crime induce an instinctive reactionagainst dispassionate judicial scrutiny ofthe facts and law.”21. An accused can be questioned underSection 313 Cr.P.C. only for the purpose ofenabling him personally to explain anycircumstance appearing in the evidenceagainst him. No matter how weak orscanty the prosecution evidence is inregard to certain incriminating material, itis the duty of the Court to examine theaccused and seek his explanation onincriminating material which has surfacedagainst him.22. Section 313 Cr.P.C. is based on thefundamental principle of fairness. Theattention of the accused must specificallybe brought to inculpatory pieces ofevidence to give him an opportunity tooffer an explanation if he chooses to do

so. Therefore, the court is under a legalobligation to put the incriminatingcircumstances before the accused andsolicit his response. This provision ismandatory in nature and casts animperative duty on the court and confersa corresponding right on the accused tohave an opportunity to offer anexplanation for such incriminatorymaterial appearing against him.Circumstances which were not put to theaccused in his examination under Section313 Cr.P.C. cannot be used against himand have to be excluded fromconsideration. (Vide SharadBirdhichand12 and State ofMaharashtra v. Sukhdev Singh13.23. In S. Harnam Singh v. State(Delhi Admn.)14, this Court held thatnon-indication of inculpatory material andits relevant facts by the trial court to theaccused adds to the vulnerability of theprosecution case. The recording of thestatement of the accused under Section313 Cr.P.C. is not a purposeless exercise.24. If any appellate Court or revisionalcourt comes across the fact that the trialCourt had not put any question to anaccused, even if it is of a vital nature,12 (1984) 4 SCC 116 : 1984 SCC (Cri) 48713 (1992) 3 SCC 700 : 1992 SCC (Cri) 70514 (1976) 2 SCC 819 : 1976 SCC (Cri) 324 : AIR 1976 SC 2140

such an omission alone should not resultin the setting aside of the conviction andsentence as an inevitable consequence.An inadequate examination cannot bepresumed to have caused prejudice.Every error or omission in compliance ofthe provisions of Section 313 Cr.P.C., doesnot necessarily vitiate trial. Such errorsfall within category of curableirregularities and the question as towhether the trial is vitiated, in each casedepends upon the degree of error andupon whether prejudice has been or islikely to have been caused to accused.Efforts should be made to undo or correctthe lapse. (Vide: Wasim Khan v. Stateof U.P.15, Bhoor Singh v. State ofPunjab16, Labhchand Dhanpat SinghJain v. State of Maharashtra17, Stateof Punjab v. Naib Din18 and ParsuramPandey v. State of Bihar19.25. In Asraf Ali v. State of Assam20,this Court observed:“21. Section 313 of the Code casts a duty onthe court to put in an enquiry or trial questions tothe accused for the purpose of enabling him toexplain any of the circumstances appearing in theevidence against him. It follows as a necessary15 AIR 1956 SC 400 : 1956 Cri LJ 79016 (1974) 4 SCC 754 : 1974 SCC (Cri) 664 : AIR 1974 SC 125617 (1975) 3 SCC 385 : 1975 SCC (Cri) 11 : AIR 1975 SC 18218 (2001) 8 SCC 578 : 2002 SCC (Cri) 3319 (2004) 13 SCC 189 : 2005 SC (Cri) 11320 (2008) 16 SCC 328 : (2010) 4 SCC (Cri) 278

corollary therefrom that each materialcircumstance appearing in the evidence againstthe accused is required to be put to himspecifically, distinctly and separately and failureto do so amounts to a serious irregularity vitiatingtrial, if it is shown that the accused wasprejudiced.” (emphasis supplied).26. In Shivaji Sahebrao Bobade v.State of Maharashtra21, this Courtobserved as under:“16. ....It is trite law, neverthelessfundamental, that the prisoner's attention shouldbe drawn to every inculpatory material so as toenable him to explain it. This is the basic fairnessof a criminal trial and failures in this area maygravely imperil the validity of the trial itself, ifconsequential miscarriage of justice has flowed.However, where such an omission has occurred itdoes not ipso facto vitiate the proceedings andprejudice occasioned by such defect must beestablished by the accused. In the event ofevidentiary material not being put to the accused,the court must ordinarily eschew such materialfrom consideration. It is also open to the appellatecourt to call upon the counsel for the accused toshow what explanation the accused has as regardsthe circumstances established against him but notput to him and if the accused is unable to offer theappellate court any plausible or reasonableexplanation of such circumstances, the court mayassume that no acceptable answer exists and that21 (1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : AIR 1973 SC 2622

even if the accused had been questioned at theproper time in the trial court he would not havebeen able to furnish any good ground to get out ofthe circumstances on which the trial court hadrelied for its conviction.” (Emphasisadded).27. In Ganesh Gogoi v. State ofAssam22 this Court, relying upon itsearlier decision in Basavaraj R. Patil v.State of Karnataka23, held that theprovisions of Section 313 Cr.P.C. are notmeant to nail the accused to hisdisadvantage but are meant for hisbenefit. The provisions are based on thesalutary principles of natural justice andthe maxim "audi alteram partem" hasbeen enshrined in them. Therefore, anexamination under Section 313 Cr.P.C. hasto be of utmost fairness.28. In Sk. Maqsood v. State ofMaharashtra24 and Ranvir Yadav v.State of Bihar25, this Court held that it isthe duty of the trial court to indicateincriminating material to the accused.Section 313 Cr.P.C. is not an emptyformality. An improperexamination/inadequate questioningunder Section 313 Cr.P.C. amounts to aserious lapse on the part of the trial Court22 (2009) 7 SCC 404 : (2009) 3 SCC (Cri) 42123 (2000) 8 SCC 740 : 2001 SCC (Cri) 8724 (2009) 6 SCC 583 : (2009) 3 SCC (Cri) 8225 (2009) 6 SCC 595 : (2009) 3 SCC (Cri) 92

and is a ground for interference with theconviction.29. In Suresh Chandra Bahri v. Stateof Bihar26, this Court rejected thesubmission that as no question had beenput to the accused on motive, no motivefor the commission of the crime could beattributed to the accused, nor the samecould be reckoned as circumstanceagainst him observing that it could not bepointed out as to what in fact was the realprejudice caused to the accused byomission to question the accused on themotive for the crime. No material wasplaced before the court to show as towhat and in what manner the prejudice, ifany, was caused to the accused. More so,the accused/appellant was aware ofaccusation and charge against him.30. Thus, it is evident from the abovethat the provisions of Section 313 Cr.P.C.make it obligatory for the court toquestion the accused on the evidence andcircumstances against him so as to offerthe accused an opportunity to explain thesame. But, it would not be enough for theaccused to show that he has not beenquestioned or examined on a particularcircumstance, instead he must show thatsuch non-examination has actually and26 1995 Supp (1) SCC 80 : 1995 SCC (Cri) 60

materially prejudiced him and hasresulted in the failure of justice. In otherwords, in the event of an inadvertentomission on the part of the court toquestion the accused on anyincriminating circumstance cannot ipsofacto vitiate the trial unless it is shownthat some material prejudice was causedto the accused by the omission of thecourt.”20. The gist of the above authorities is that everyerror or omission in compliance with the provisions of Section313 does not necessarily vitiate the trial. Such errors fallwithin the category of curable irregularities and question,whether trial is vitiated in each case, depends upon thedegree of error and whether prejudice has been or is likely tohave been caused to the accused. The ultimate test indetermining whether or not the accused has been fairlyexamined under this Section is to see whether, having regardto the questions put to him, he did not get an opportunity tosay what he wanted to say in respect of the prosecution caseagainst him. Where the non compliance with Section 313holds the trial to be vitiated, ordinarily the proper course is toorder a retrial from the stage at which the provisions of this

section were not complied with.21. We have meticulously examined the statement atExhibits 127 to 133. We could notice that 66 identicalquestions were put to each of the accused by the learnedAdditional Sessions Judge though entirely differentincriminating circumstances against each of them werebrought on record.It is pertinent to note that role played by accusedNos. 5,6 and 7 even according to prosecution was limited, asaccused Nos. 5 and 6 were guarding at the gate of thebuilding and accused No.7 passed on the information toaccused No.5, who, executed the plan. Accused No.7 was noteven present on the spot. Therefore, there was no meaningin putting all 66 questions to each of the accused. Asquestions were not put specifically, distinctly and separately,in our view, it amounts to serious irregularity vitiating thewhole trial, as it is shown that serious prejudice has beencaused to the accused.22. It is significant to note that since 2007, accusedwere facing the trial. Some of the accused remained in jailthroughout. The statements under Section 313 of the Code

were recorded just by cut-copy-paste. Most of the questionsput to each of the accused were irrelevant and misleading.The accused have demonstrated from the questions put tothem that serious prejudice has occasioned to them asstatements were recorded in the total disregard of theprovisions of Section 313 of the Cr.P.C. In this premise we arenot inclined to order retrial from the stage at whichprovisions of Section 313 of the Cr.P.C. were not compliedwith.23. In the result, appeals succeed. Accordingly, wepass the following order :-[a] The impugned judgment and order ofconviction and sentence in Sessions Case No. 642 of2007, passed by the learned Additional Sessions Judge,Greater Bombay, is hereby quashed and set aside ;[b] The accused are acquitted of the offencepunishable under Section 396 read with Section 34 ofthe Indian Penal Code.[c] Accused Nos.1 to 5 and 7 who are in jail shallbe released forthwith, if not otherwise required in any

other case.[d] Bail bonds of accused No.6 shall standcancelled and she is set at liberty forthwith.[e] Registry to communicate this order to theaccused in jail through the concerned jail authorities.[f] We quantify fees to be paid by the HighCourt Legal Services Committee to the appointedAdvocate Mr. A.V. Bedekar at Rs. 5000/-.[SMT. I.K. JAIN, J] [SMT. V.K.TAHILRAMANI,J]